High Court judge sets aside decision in Bantry Bay kelp harvesting case

File photo of Bantry Bay.

A High Court judge has said the only way mechanical harvesting of seaweed around our shores can be done sustainably - and yield significant benefits for coastal communities - is if the State first conducts trials on what the environmental effects will be.

Ms Justice Deirdre Murphy was speaking when she set aside a judgment she gave last year in relation to a challenge concerning reports required to act on a foreshore licence in Bantry Bay, Cork, granted in 2014 to kelp harvesting firm BioAtlantis Aquamarine Ltd which extract bioactives from seaweed.

The firm, based in Tralee, Co Kerry holds a patent for a product derived from kelp which has the potential to replace the use of antibiotics in animal feed.

She made her ruling last July in a challenge brought by John Casey, a member of a local group campaigning to protect native kelp habitats, against the Minister for Housing, Planning and Local Government and in which BioAtlantis was a notice party.

She ruled the licencing process had not yet concluded by reason of the failure of the Minister to comply with his statutory obligations under the Foreshore Act 1933 (as amended).

BioAtlantis, which withdrew from the substantive hearing last year because it had nothing to add to the Minister's argument, subsequently asked the judge to revisit and set aside her decision. Mr Casey opposed the application.

Today, the judge set aside her July last judgment on the grounds that BioAtlantis had a right to be heard on that application.

This was the court's determination on the issue of jurisdiction, she said.

She refused Mr Casey's request to proceed to judgment on his application that there had been a failure by the Minister, among other things, to comply with the EU Habitats Directive in a 2017 decision approving a baseline study and monitoring programme which was a condition of BioAtlantis proceeding in 2018 with the 2014 harvesting licence.

The judge said she had already found that licence was not yet operative or effective because of the State's failure to comply with the Foreshore Act which provides for public scrutiny of State decisions.

"This is hugely regrettable not least for the notice party, BioAtlantis, who have complied with every request of the State during the licencing process and who have expended very significant time and resources in doing so," she said.

In this case the State has been the source of the problem. Perhaps now, it can be the source of the solution.

She also said the only way to know for certain what the environmental effects of mechanical harvesting of kelp will be is to conduct trials.

As long ago as 2004, an expert report advised the trialling of kelp harvesting might require a mechanical framework outside the normal licensing provisions of the Foreshore Act, as has been done in France and Norway.

Rather than act on that advice, the State "opted to use the existing licencing provisions to grant what, in effect, is a trial licence," to BioAtlantis, she said.

While that was the State's right, where it uses existing legislation, it has to fully comply with the provisions of public scrutiny required by that legislation and it did not do so in this case, she said.